BENSON v. People of the State of California, Real Party in Interest.*

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District Court of Appeal, Second District, Division 3, California.

Ralph BENSON, Petitioner, v. SUPERIOR COURT of The State of California, IN AND FOR The COUNTY OF LOS ANGELES, Respondent, People of the State of California, Real Party in Interest.*

Civ. 25542.

Decided: August 24, 1961

Alan Ross, Los Angeles, for petitioner. William B. McKesson, Dist. Atty., Harry Wood and Robert J. Lord, Dep. Dist. Attys., Los Angeles, for real party in interest.

Petitioner seeks a writ of prohibition to prevent any further proceedings under a count of an indictment in which he is accused of the crime of soliciting two persons named Pallato and Scheingold, respectively, to commit and join in the commission of perjury in violation of section 653f of the Penal Code.1 (Pen.Code, § 999a.) In the superior court the petitioner's motion to set aside the indictment pursuant to section 995 of the Penal Code was denied.

Since the petitioner contends that ‘there is no evidence in the record that defendant solicited any person to commit or join in the commission of perjury,’ it is necessary to set forth the pertinent evidence which is contained in the transcript of the proceedings before the grand jury. The testimony related to the petitioner's activities as an attorney with respect to the matter of the adoption of children and, in particular, to his conversations with Terri Pallato and Evelyn Scheingold as to testimony to be given in a proposed judicial proceeding in the superior court of Los Angeles County, such proceeding being known in that court as a sole custody proceeding. The nature thereof was described by the judge then presiding in the department of the superior court to which adoption matters are assigned. While no specific provision for such a sole custody proceeding is found in any code, the purpose thereof is to determine whether, where the mother is or has been married to one other than the man she asserts to be the natural father of the child, the consent of the presumptive father2 to the proposed adoption is necessary.3 The practice followed is that the petition for the determination of the necessity of such consent is verified; at the hearing of the petition, the testimony directed to the issue presented is under oath. The judge further testified:

‘Q. Your Honor, assuming that a married woman was expecting a child and that there was a possibility that the husband was the father of the child. Would testimony from a witness that she was acquainted with the husband and that the expectant mother had been living with the witness for eleven months, and that it would be impossible for the husband to be the father of the child be material and relevant in a sole custody proceeding to determine that the husband's consent was not necessary for the adoption of the child? A. Yes. It is relevant because the Court requires corroboration in all of these matters. Sometimes it is impossible to get persons to testify, and then it may be that documentary evidence would be required and such documentary evidence may be in the form of—let's say a husband is confined to a penal institution, a husband is in the Armed Forces, and the Court requires that substantiating evidence be submitted to the Court before the Court makes its determination in the sole custody proceeding.’

Evelyn B. Scheingold testified that in recent months she had been working with a Mr. Mitler in connection with an investigation he had been conducting into adoption practices in Los Angeles County for the ‘State Department of Public [Social] Welfare.’ On March 5, 1960, she went to the home of Miss Fenner, who was also working with Mr. Mitler. The witness listened in on a telephone conversation between Miss Fenner and a Betty Baker. Thereafter, the witness, using the name of Evelyn Bear, telephoned Miss Baker. Later she went to Miss Baker's home; Miss Baker told her that her true name was Deetta Hough. Mrs. Hough made an appointment for her with the petitioner. On March 8, 1960, she met Mrs. Hough at the petitioner's office. She related her conversation with the petitioner as follows:

‘A. I told Mr. Benson that I was primarily interested in having a family to adopt my baby who had money. I felt this was important to the child and important to me, too. He said, ‘At this time I can't tell you the amount, but I promise you that I won't be chintsy [sic] on this one if you will cooperate with me.’ I asked him what I would do if I needed money between the time—between now and the time that my baby was born, and he said that he would work out each problem as it came along. I told him that my big problem was the fact that I had been living with both my husband any my boy friend, and I did not know who was the father of this baby. He said, ‘There are ways of getting around the law, and I'm the only lawyer in town who knows how to do it.’ He said, ‘I will help you get a witness to establish that your husband could not have been the father. I know how to get around these Courts.’ He then told me to go to the telephone company for a job and to give his name as reference. He said to tell them that I had worked in his office for about a year. When we parted, he said that if I would cooperate with him he would cooperate with me.'

On March 18, the witness talked to Mrs. Hough on the telephone. On March 23, she went to the petitioner's office. On that occasion the following conversation occurred:

‘A. Mr. Benson said, ‘Have you found a job yet?’ I said, ‘No, I haven't found a job because I'm lazy.’ Mr. Benson said, ‘I think you should find one. However, I can offer you $1500 for your baby no matter how much money you have. I can work out a budget that would make it appear as though you need this amount of money. * * * Now, out of this $1500 you would have to pay your medical expenses and doctor bills. If you want an expensive doctor, that's your decision. If you want to go to the County Hospital and have it free, that's also your decision.’ I said, ‘Is this the best deal you can make?’ He said, ‘You can shop all over the City, but you won't find a better deal than this one. My fee is $25 for an hour interview with you.’ I said, ‘Do I have to pay that?’ He said, ‘No, the adoptive family will pay that.’ * * * I said, ‘Mr. Benson, my big problem is how I am going to get a witness to testify that I have not been with my husband for a period of time.’ He said, ‘You have a girl friend here, haven't you?’ I said, ‘Yes, but I am afraid she may say the wrong things. She's pretty nervous.’ Mr. Benson said, ‘Don't worry. I'll talk to her. She will say the right things.’'

On April 7, 1960, Terri Pallato went to the petitioner's office with the witness. Miss Pallato was introduced to the petitioner under the name of Terri Pagano. The witness' testimony as to the conversation was:

‘A. Terri told—Terri Pallato told Mr. Benson that she had never seen my husband, that she did not know him, that she did not know whether or not this was his baby, but she was willing to swear in the affirmative to both of these points in the Judge's chambers. Mr. Benson assured her that there was nothing to it. He said that Terri and I would go into the Judge's chambers and he would ask whether or not she knew my husband and whether or not this could be his baby, and she would answer that this could not be his baby. Mr. Benson then said that no one would check on this because no one really cares how adoptions are put through as long as they are put through. He said he had been a lawyer for fourteen years and has never had a witness of his questioned, so there was nothing to worry about. Terri said to him, ‘Oh, then you've done this before?’ And he said, ‘Oh, yes, many times. There's nothing to it.’ He said he didn't think—he wouldn't do anything that would get him in trouble. He then asked Terri to leave the room so he could talk to me in private.

‘Q. May I interrupt, please. Is it your testimony that Benson in substance and effect told Terri that the Judge in chambers would ask Terri if she, Terri, knew your husband? A. Yes.

‘Q. And what, if anything, did Benson say Terri's answer should be to that question put to Terri by the Judge? A. She said that —Mr. Benson said that Terri should say that she knew my husband, but that I had been living out here in Los Angeles for over 11 months and this could not be his child. (Emphasis added.)

‘Q. And you are sure that before that was said by Terri or Benson that Terri had said in substance and effect that she didn't know your husband? A. Yes.’

Terri Pallato testified that in recent months she had been working with Mr. Mitler in his investigation of certain aspects of adoption matters. She went to the petitioner's office on April 7, 1960, but before that she had a conversation with Mrs. Scheingold. Mrs. Scheingold told her that she had been to the petitioner's office, that she had discussed with Mr. Benson the subject of which man was the father of her child, and that Mr. Benson had inquired as to whether she could bring a friend to his office ‘in connection with the testimony that would be given in the sole custody hearing.’ The witness testified:

‘A. The substance of the conversation was Evelyn Scheingold going to Mr. Benson's office, the fact that she was pregnant, and it seems there was a possibility that this might have been her husband's baby, and she was trying to get a sole custody out of Mr. Benson. She needed a witness who would have known her husband and would have known that this was not her husband's child. So I was to act as that witness for Evelyn Scheingold.’ In the petitioner's office, Mrs. Scheingold said, ‘Well, Mr. Benson, this is my good friend, Terri Pagano, and she has come here to help us out.’ As to the conversation which then followed, the witness testified: ‘And he said, ‘Ah, Confidante.’ She said, ‘Yes, I hope so.’ And we all sat down and I told Mr. Benson that in fact I did not know Evelyn's husband, had never seen the man and did not know whether this could possibly be her husband's child. so Evelyn said, ‘Mr. Benson, since Terri is so nervous, would you tell her exactly what to say or how we are going to go about this thing?’ So he looked at me and he said, ‘Well, it's really very simple.’ He said, ‘There is nothing to it.’ He said, ‘All we do is we three, you, her and me, will walk into the Judge's chambers and he will ask you those two questions.’ * * * And he said, ‘All you do is answer yes to both those questions.’ So I said, ‘Well, I'm terribly nervous about it, Mr. Benson.’ I said, ‘I don't do this every day of my life. So,’ I said, ‘naturally, I'm very nervous.’ He said, ‘Look, there's absolutely nothing to it.’ He said, ‘You don't think that I would be doing something that I thought would get me in trouble, do you?’ He said, ‘I've been an attorney for 14 years,’ and he said, ‘Nobody has ever questioned my witnesses.’ And then he leaned over his desk a little bit at me and he said, ‘Do you know why nobody has ever questioned me?’ And I said, ‘No.’ He said, ‘Because nobody cares.’ And I said ‘Oh,’ I said, Well, if you've done this before,' I said, ‘I guess you'll know exactly what to do, so I won't worry about it.”

The witness further testified as follows:

‘Q. Now, while you were in the room with Mrs. Scheingold and Benson did Evelyn tell Benson that you and she had been living together? A. Yes.

‘Q. Did Mrs. Scheingold say how long you two had been living together? A. No.

‘Q. Did Benson ask how long you had been living together? A. No, not that I remember. I don't remember that.

‘Q. Did Benson say anything about whether or not you had ever seen Mrs. Scheingold's supposed husband? A. No. I told him that I didn't know him and had never seen him and didn't know whether it was his baby before he had a chance, you know—before it made it necessary to ask me that.

‘Q. Did Mr. Benson question you at all about whether or not you knew or did not know Mrs. Scheingold's boy friend? A. No, he did not.

‘Q. He just stated the three of you would go into the Judge's chambers, is that right? A. Yes. He said, ‘Me, you and her, we will go into the Judge's chambers, and he will ask you two questions, and you just simply answer yes to both questions,’ and he said, ‘that's all there is to it.’

‘Q. Did he say what the two questions were? A. Well, he did not repeat them, no, but we had been talking about the fact that I know her husband and——

‘Q. In the first part of the conversation what was said along that line? A. I don't quite understand you.

‘Q. Well, in the first part of the conversation did Benson ask you if you did or did not know Evelyn's husband? A. No, I don't know that he asked me, but I know that I said, ‘I do not know her husband,’ when she said to him, ‘Will you tell Terri what she should do when we go in there,’ and I said, ‘You realize I do not know her husband, that I never saw him and I don't know whether it is his baby.’

‘Q. You told Benson in substance and effect you didn't know who was the father of the supposed child that Evelyn was carrying, is that right? A. That's right. Oh, yes, I was only helping her out. In other words, I was there—I would be willing to do anything to help Evelyn. That was my saying.’

In Bompensiero v. Superior Court, 44 Cal.2d 178, at pages 183–184, 281 P.2d 250, at page 254, the Supreme Court said: ‘Probable cause is shown if a man of ordinary caution or prudence would be led to believe and conscientiously entertain a strong suspicion of the guilt of the accused. [Citation.] An indictment will not be set aside or a prosecution thereon prohibited if there is some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it.’ See also Rogers v. Superior Court, 46 Cal.2d 3, 7, 291 P.2d 929. As said in Kind v. Superior Court, 143 Cal.App.2d 100, at page 102, 299 P.2d 414, at page 416, ‘The People were not required to produce that quantum of evidence which section 653f requires be produced at the trial to prove the offense, but only sufficient evidence to give a rational appearance that the offense charged had been committed.’ See also People v. Thomas, 90 Cal.App.2d 491, 494, 203 P.2d 567.

With respect to the crime of solicitation, it is said in Fricke, California Criminal Law (7th ed.), at page 114: ‘The gist of the offense is the solicitation of the commission of one or more of the offenses listed in the statute (People v. Humphrey, 27 Cal.App.2d 631 [81 P.2d 588]) and the law is violated whether the person solicited responds favorably or unfavorably or not at all, whether or not the crime the commission of which was solicited was committed or attempted (People v. Gray, 52 Cal.App.2d 620 [127 P.2d 72]; People v. Haley, 102 Cal.App.2d 159 [227 P.2d 48]) and whether the idea was one which the person solicited had previously entertained or not or whether the solication was in response to some act or statement of the person solicited.’

The petitioner asserts that the indictment was found without reasonable or probable cause because of the lack of evidence as to several essential matters. At the outset he states that there is no evidence in the record that any statements claimed to have been solicited were in fact false. His argument is as follows: ‘The fact that Mr. Benson was told that Mrs. Pallato did not know Mrs. Scheingold's husband, never saw him and that she didn't know whether or not the baby was his, is not proof that these facts were true. The District Attorney never asked either witness to state the true state of facts nor did he ask either witness whether the facts stated to Mr. Benson were true. Thus if Benson suggested [that] Pallato testify to a different state of facts, that testimony, if given could not on the proof available in the record be proved false. A solicitation under these circumstances would not amount to a solicitation to commit perjury.’ But, as will be shown, the petitioner's concept of the nature of perjury is too narrow.

The definition of perjury is embodied in sections 118 and 125 of the Penal Code. Section 118 is in part as follows: ‘Every person who, having taken an oath that he will testify, declare, depose or certify truly before any competent tribunal, officer, or person, in any of the cases in which such an oath may by law be administered, wilfully and contrary to such oath, states as true any material matter which he knows to be false * * * is guilty of perjury.’ Section 125 is as follows: ‘An unqualified statement of that which one does not know to be true is equivalent to a statement of that which one knows to be false.’ As stated in Burdick, Law of Crime, § 329: ‘The testimony must be false in order to constitute perjury. This does not necessarily mean that what the witness said was false in fact, because it is false testimony when a witness says that a certain thing is true when he does not know whether it is true or not. He commits perjury in such a case even though what he says happens to be true, since he is a false witness in testifying to something as of his own knowledge when he has no knowledge. In most instances of perjury the statement of the witness is false in fact, but it is the falsity of the witness rather than the falsity of his statement that makes him a perjurer. The gist of the offense of perjury is the disregard and intentional violation of the oath which the witness has taken.’ (See also Clark & Marshall, Law of Crimes (6th ed.), § 14.03, at 918; Perkins on Criminal Law (1957) 388–389; Russell on Crime (11th ed., 1958) 336.)

The views expressed by the textwriters are in harmony with the following statement of the Supreme Court in People v. Von Tiedeman, 120 Cal. 1288, at page 136, 52 P. 155, at page 158: ‘Section 125 of the Penal Code is designed to include those cases where a witness testifies to matters when he knows that he has no knowledge upon the matters as to which he gives testimony; or, as put by some law writers, he testifies to matters of which he knows himself to be ignorant. The criminality in such cases is found in the fact that the witness absolutely knows when giving his testimony that he does not know anything about the matter to which he is testifying. His knowledge of this fact makes his testimony false and corrupt, and the law declares him guilty of the crime of perjury. And he is equally guilty though this evidence should happen incidentally to be true.’ See also People v. Tolmachoff, 58 Cal.App.2d 815, 821–822, 138 P.2d 61.

It is a reasonable inference from the testimony before the grand jury that the petitioner solicited Miss Pallato to testify in a proposed sole custody proceeding that she knew Mrs. Scheingold's husband and to give testimony upon the subject of the cohabitation of Mrs. Scheingold and her husband. Inasmuch as Miss Pallato stated to the petitioner that her testimony would not be as to matters of which she had actual knowledge, it is a proper inference that the petitioner deliberately sought to have Miss Pallato testify to something as of her own knowledge regardless of whether she was in fact ignorant with respect to the matter. The state of mind of the petitioner can reasonably be inferred from the facts and circumstances disclosed by the evidence given before the grand jury. See People v. Lyles, 156 Cal.App.2d 482, 486, 319 P.2d 745.

The petitioner further contends that he could not be guilty of soliciting another to commit perjury because there was no pending judicial proceeding in which the testimony alleged to have been solicited would have been material. There is nothing in the language of section 653f of the Penal Code which requires the conclusion that such offense can only occur if there is a pending proceeding but cannot be committed if the proceeding is only contemplated. To narrowly construe such legislation would be to hold, for instance, that there could be no crime of solicitation of perjury where one is solicited to file under oath a complaint in a civil action based upon a spurious claim. Cf. State v. Waddle, 100 Iowa 57, 69 N.W. 279, 280. In People v. Haley, 102 Cal.App.2d 159, 227 P.2d 48, the defendant was convicted of the crime of soliciting another to commit perjury. The defendant therein filed an action to recover damages which she alleged she had suffered as the result of an accident. Such accident had never occurred. She solicited one Howard to be a witness in her behalf and said to him that she would tell him what to say. Later she told him how to describe the accident. While it is not discussed in the opinion, the record in that case reveals that the civil action was filed on November 7, 1949, whereas the evidence as to the solicitation related to a period of time prior to that. On its facts, that case appears to support the position that the offense may be committed where the solicitation relates to testimony to be given in a contemplated judicial proceeding.

But the difficulty in the present case is that, unlike the situation in the Haley case, the record does not disclose any facts which could support an inference that the judicial proceeding which was discussed could actually be instituted. The fair inference from the record is that the representations made to the petitioner by Mrs. Scheingold were fabrications designed to lead him into a disclosure of his methods of operation and that the legal proceedings discussed could never in fact occur. There could be no adoption proceedings in the future unless there was to be a child who could be the subject thereof; the record does not disclose whether Mrs. Scheingold was really pregnant. Even if she was in fact pregnant, there could be no sole custody proceeding in the future unless there was a question with respect to whether Mrs. Scheingold's husband or another was the father of the expected child; the record does not disclose any evidence as to Mrs. Scheingold's actual marital status. False testimony in a judicial proceeding can properly be the basis of a charge of perjury if such testimony was material to an issue before the court; the ordinary test of materiality is whether the testimony in question could have properly influenced the tribunal before which the matter was being heard upon an issue involved therein. People v. Pustau, 39 Cal.App.2d 407, 413, 103 P.2d 224; People v. Dunstan, 59 Cal.App. 574, 584, 211 P. 813; 38 Cal.Jur.2d, Perjury, §§ 13–15. Since in the present case it does not appear that there could ever be any judicial proceeding in which the solicited testimony could be given, it cannot be said that the crime of perjury could ever have been committed. Cf. In re Clark, 54 Cal.App. 507, 508, 202 P. 50. Inasmuch as it must be concluded that the facts were such that the testimony discussed could never result in the commission of perjury, a charge of the solicitation of perjury cannot stand. See People v. Baskins, 72 Cal.App.2d 728, 732, 165 P.2d 510; People v. Gray, 52 Cal.App.2d 620, 652, 127 P.2d 72. Based upon such inferences as find support in the record, the most that can be said of the case presented before the grand jury finds expression in the language used many years ago by the court in State v. Joaquin, 69 Me. 218, at page 220: ‘This was rather an ideal than a real offense, morally reprehensible no doubt, but not such as the law sees fit to notice.’

Let the peremptory writ of prohibition issue as prayed.


1.  Section 653f of the Penal Code is in part as follows: ‘Every person who solicits another * * * to commit or join in the commission of * * * perjury * * * is punishable by imprisonment in the county jail not longer than one year or in the state prison not longer than five years, or by fine of not more than five thousand dollars. Such offense must be proved by the testimony of two witnesses, or of one witness and corroborating circumstances.’

2.  Section 1962 of the Code of Civil Procedure is in part as follows: ‘The following presumptions, and no others, are deemed conclusive: * * *5. Notwithstanding any other provision of law, the issue of a wife cohabiting with her husband, who is not impotent, is indisputably presumed to be legitimate; * * *’ In section 1963 of that code, it is provided in part as follows: ‘All other presumptions are satisfactory, if uncontradicted. They are denominated disputable presumptions, and may be controverted by other evidence. The following are of that kind: * * * ‘31. That a child born in lawful wedlock, there being no divorce from bed and board, is legitimate.’ Section 194 of the Civil Code is as follows: ‘All children of a woman who has been married, born within ten months after the dissolution of the marriage, are presumed to be legitimate children of that marriage.’

3.  Some pertinent provisions of the Civil Code are as follows: Section 224: ‘A legitimate child cannot be adopted without the consent of its parents if living; * * * nor an illegitimate child without the consent of its mother if living; * * *.’ Section 226: ‘* * * In all cases in which consent is required, * * * unless an agency licensed by the State Department of Social Welfare to find homes for children and place children in homes for adoption joins in the petition for adoption, the consent of the natural parent or parents to the adoption by the petitioners must be signed in the presence of an agent of the State Department of Social Welfare or of a licensed county adoption agency * * *. Such consent, when reciting that the person giving it is entitled to the sole custody of the minor child, shall, when duly acknowledged before such agent, be prima facie evidence of the right of the person making it to the sole custody of the child and such person's sole right to consent.’

FORD, Justice.

VALLEÉ, Acting P. J., and SPARKS, J. pro tem., concur.